Fick v. Oregon Dept. of Fish and Wildlife

An agency is not required to act in a manner directly inconsistent with the purpose of its rules in furtherance of lessening the economic impact of the rules on small businesses, and does not violate ORS 183.540 by declining to do so.

Petitioners sought judicial review of rules adopted by the Department of Fish and Wildlife (DFW), arguing they should be declared invalid for failure to comply with ORS 183.540, which pertains to the reduction of economic impact on small businesses. Petitioners maintained DFW failed to consider the economic impact of new rules regarding non-tribal recreational and commercial fisheries along the Colombia River, arguing when a “small business impact statement shows a significant adverse effect on small business, the agency must reduce the impact of the rules on those businesses to the extent consistent with the regulatory purpose.” DFW argued the small business impact statement did not show a significant adverse effect. The Court held “the statute requires limiting the economic effect of a rule on small business when the expense of complying with the rule is substantial—but not at the cost of excusing compliance with the substance of the rule.” DFW considered the economic effect of the rules and attempted to mitigate the effect, but determined additional action was not required as it would be inconsistent with the purpose of the rules. “The agency was not required to act in a manner directly inconsistent with the purpose of the rules and did not violate the statute by declining to do so.” OAR 635-500-6700 to 635-500-6765 held valid.